California bans painting of Civil War battle from County Fair art show, because painting includes Confederate battle flag

California Government Code § 8195 provides that “The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.” Read narrowly, this would be constitutional: The California Legislature is generally free to decide what speech the state engages in.

But it looks as though the state is now reading this as prohibiting even the display of private citizens’ paintings in venues such as County Fair art shows, and even in a context where basically all other submissions are displayed (so that the government isn’t just selecting a few paintings for display because it thinks they are the best). A lawsuit filed by the Center for Individual Rights argues that this violates the First Amendment:

Plaintiff [Timothy Desmond] is a resident of Fresno County …. Plaintiff is both an artist and a civil war buff. In 2015, Plaintiff created a painting called The Attack, which depicts a scene from the 1864 Siege of Atlanta. The painting included several individuals carrying flags, one of which was the Second National Confederate States flag used at times by the Confederacy.

The Big Fresno Fair … is operated by … under the authority of … the California Department of Food and Agriculture. Among other activities, the Fair displays artwork, including paintings, and the Department of Food and Agriculture prescribes regulations for the Fair, including the judging of exhibits. Any resident of Fresno County may submit a painting for display….

Plaintiff has submitted artwork in the past for display at the Fair. Plaintiff submitted The Attack to the 2015 Fair for display, and was later told that he should pick up The Attack because it could not be displayed with other artwork at the Fair. Theodore Scribner, the director of the fine arts program for the Fair, told Plaintiff that the painting could not be displayed under a California law that prohibited the state from displaying the Confederate flag.

When Plaintiff picked up the painting, … the Exhibits and Concessions Manager of the Fair[] told him that the Fair had received a written notice from the State Fairs and Exposition Branch the previous June stating that the law in question prohibited the display of any artwork that included the Confederate flag, and that she had confirmed that prohibition with the office of the Attorney General. She also told Plaintiff that had the painting been deemed worthy of an award by the judges, he would have received it despite the fact that the Attack was not displayed.

Plaintiff wants to submit The Attack for display at the 2016 Fair. Plaintiff continues to paint and plans to create more paintings depicting civil war battles, some of which will depict flags associated with the Confederacy. He wants to submit some of these paintings to the Fair in the future for display….

Defendants’ enforcement of Section 8195 is a viewpoint based restriction on speech in violation of the First Amendment ….

While Plaintiff will contend in this case that the Fair created a public forum for the display of privately-created artwork, this motion need not address that question. Even if the forum were limited or nonpublic, the government may restrict access only “as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because the public officials oppose the speaker’s view.” …

As applied to the display of privately-created art at a county fair, Section 8195 is not a reasonable regulation. It has nothing whatsoever to do with the quality of the art, the size of the artwork, or its ability to be displayed. In these respects, The Attack is no different from any other artwork that could be displayed at the Fresno Fair.

The only possible government interest here is the interest “in avoiding the appearance of government endorsement of … messages.” Sammartano v. First Judicial District Court, 303 F.3d 959, 967 (9th Cir. 2002). But the government does not “endorse” any of the privately-created artwork simply because it displays it at a county fair, just as it does not endorse any livestock shown at the Fair. Everyone understands that the messages of the artworks displayed are the messages of the individual artists who created them. And if that fact were not patently obvious, the government could easily avoid any possible misunderstanding by simply posting a sign indicating that the display of art at the fair does not constitute a government endorsement. Id. (holding that a ban of wearing clothing that reflected affiliation with a biker club was not a reasonable regulation because “[t]he state had ‘simpler and far less restrictive alternatives available to it,’ such as … issuing a narrower order that banned only items that might reasonably convey an impression of state endorsement.”).

[Footnote: The notion that the state was trying to avoid endorsing a message from a privately-created artwork is undermined by the fact that, although it could not be displayed, The Attack was still eligible to receive an award. The notion that such an award would not constitute an endorsement, but that its display would, is just unreasonable.] …

Section 8195’s prohibition of display of the Confederate flag [also] clearly amounts to impermissible viewpoint discrimination. “Viewpoint discrimination is a form of content discrimination in which the government targets not the subject matter, but particular views taken by speakers on a subject.” Brown v. California Dep’t of Transportation, 321 F.3d 1217, 1223 (9th Cir. 2003). Section 8195 is viewpoint discriminatory for two distinct and independent reasons. First, on its face, it discriminates against a set of viewpoints reflected by the symbols that it prohibits the display of. Second, its legislative history demonstrates that suppressing and disassociating from the views associated with those symbols was the unambiguous purpose of the state in passing the law.

In Brown, the Ninth Circuit considered a Department of Transportation policy exempting American flags from a permit requirement for displays on highway overpasses, but requiring permits for any other expressive displays. The state argued that the policy did not favor or target any particular viewpoint because the flag encompassed “so many different views that it represents no viewpoint at all.” The court rejected that argument, noting

“The very purpose of a national flag is to serve as a symbol of our country; it is … the one visible manifestation of two hundred years of nationhood.” The reason the events of September 11th evoked such a spontaneous proliferation of flags is precisely because of its message. Americans sought solace in the symbol of a nation joined in the effort to combat terror in the face of tragedy. Indeed, it is the potency of the flag’s message that makes CalTrans reluctant to remove it from California’s highways. In light of recent world events, that reluctance is laudable; however, the policy derived from it is not.

Section 8195 clearly discriminates on the basis of viewpoint in violation of the First Amendment. Defendants did not bar Plaintiff’s painting because it failed to fit one of the categories of art permitted in the exhibition, nor did they bar his painting because it was not his original work or because Plaintiff does not reside in Fresno County. Rather, Defendants barred Plaintiff’s painting purely because it depicted a Confederate flag. As the American flag in Brown, the Confederate flag likewise expresses a message and a viewpoint (or set of viewpoints), and banning it is a violation of the First Amendment.

Even if Section 8195 were not viewpoint discriminatory on its face, its legislative history … [demonstrates that] the statute was not intended to eliminate a particular subject matter from discussion at a government forum, but rather to preclude a particular point of view — those associated with the Confederate flag — from being expressed in such fora.

[Next three paragraphs moved:] In the opinion of the author of the bill, the Confederate flag is a “symbol of racism, exclusion, oppression, and violence toward many Americans,” and its history is “directly related to the defense of slavery.” The Senate Judiciary Committee and the Senate Rules Committee reports on the bill describe the flag as “symboliz[ing] the nation’s history of racism and bigotry ….” The stated need for the bill was:

The Confederate flag is a symbol of racism, exclusion, oppression and violence towards many Americans. Its symbolism and history is directly linked to the enslavement, torture and murder of millions of Americans through the mid-19th Century. Even today, its public display is designed to instill fear, intimidation and a direct threat of violence towards others.

The State of California should not be in the business of promoting racism, exclusion, oppression or violence and that [sic] it should not allow taxpayer resources to be used to market hate towards others.

In Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002), the Ninth Circuit found likelihood of success on the merits where plaintiffs were refused entry to certain floors of a courthouse building for wearing motorcycle club patches. The government claimed that its policy was a permissible subject matter restriction barring symbols dealing with biker clubs or similar organizations, and that within that subject matter category, no distinctions were made between viewpoints; i.e., symbols of all biker clubs or similar organizations were barred. The Ninth Circuit rejected this argument.

The Ninth Circuit recognized that “[c]ourts do have a hard call to make when they review content-based speech regulations because the government could be shutting out some viewpoints by labeling them as subjects.” The Court noted several guideposts to assist in making the call. First, the Court considered whether the “limitation on expressive activity reflect[ed] a true incompatibility between the activity and the forum.” “[W]here the government is plainly motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum, it is regulating a viewpoint rather than a subject matter.” Even limitations of speech that appear facially reasonable are unconstitutional if “a regulation ‘… is in fact based on the desire to suppress a particular point of view.’ … If the evidence reflects that this is the motivation or intent of the government in enacting the regulation, the regulation is viewpoint discriminatory.”

So, too, when the regulation does not, in fact, prohibit discussion of an entire subject matter — for example, in Sammartano, a prohibition on clothing that suggests any affiliation at all or, here, a prohibition on artwork concerning war in general or the civil war in particular — it is further evidence that the government is motivated by limiting certain viewpoints.

In these close cases, the first consideration — the evidenced governmental intent behind the implementation of the regulation — becomes key…. Motive may thus be a vital piece of evidence that courts must use to judge the viewpoint-neutrality of the regulation … However, the record as it stands strongly suggests that, in implementing the Rules, Appellees were motivated by the nature of the message rather than the limitations of the forum or a specific risk within that forum. In the total absence of evidence of any danger produced by the speech, we can only conclude that the Rules’ very specific restriction on expression in the Complex was impermissibly motivated by a desire to suppress a particular point of view.

Here, the evidence of the legislature’s motive could not be more clear. Numerous legislative reports repeatedly refer to the Confederate flag as a “[s]ymbol of racism, exclusion, oppression, and violence toward many Americans.” Section 8195 was passed for one reason only — to suppress the viewpoint that the Confederate flag purportedly represents.

Disclosure: I am on the Board of Legal Advisors for the Center for Individual Rights, and I’ve worked closely with them before on some cases. They consulted with me briefly on this case, but I didn’t draft any part of the memorandum that I quote above.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and an intensive editing workshop at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.